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Ontario’s child advocate praises probe of drug hair tests

Ontario’s child advocate is praising Queen’s Park’s decision to probe the reliability of hair drug tests performed at the Hospital for Sick Children, used in child protection and criminal cases.

“I welcome the move,” Irwin Elman, provincial advocate for children and youth, told reporters Friday. “The move to be more transparent, to look into it, is important. I couldn’t presuppose what the inquiry will find, but it’s a positive step.”

Attorney General Madeleine Meilleur formally announced on Friday retired Court of Appeal Justice Susan Lang will review how five years’ worth of hair drug tests done by Sick Kids’ Motherisk laboratory were used in criminal and child protection proceedings.

The Star has been writing about Motherisk and the hair tests for weeks, after a Court of Appeal decision cast doubt on results the lab presented in a 2009 criminal case in which Toronto mother Tamara Broomfield was found guilty of giving her toddler a nearly fatal dose of cocaine.

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“It is important that Ontarians have confidence and trust in our health care and justice systems,” Meilleur said in a press release. “I have no doubt that a thorough review will be conducted into this matter.”

Motherisk’s hair drug and alcohol tests are regularly accepted in courts as an indication of parental substance abuse, and have had bearing on an unknown number of child custody decisions.

Toronto criminal lawyer Daniel Brodsky, who was previously involved in the inquiry into flawed child death investigations by disgraced Sick Kids pathologist Charles Smith, said he is pleased the province has launched an independent probe into “what may be a very serious problem.”

However, Brodsky said the review must be transparent, and should allow stakeholders to make submissions.

“The judge isn’t a scientific expert,” he said. “Her opinion will only be as good as the science that informs her opinion.”

Lang’s review is a first step, which will specifically examine the use of Motherisk’s hair drug tests from 2005 to 2010, before the lab started using a technique widely regarded as the gold-standard, as well as whether further investigation into past cases is needed.

A spokeswoman for Sick Kids, which has defended the reliability of the evidence presented in the Broomfield case, told the Star this week the hospital “welcomes the independent review.”

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Toronto family lawyer Tammy Law applauded the decision to launch the probe, but said she is “concerned about the limited scope.”

“There not only needs to be a review of the actual results, but also the way in which Motherisk has provided its results to children’s aid societies and the courts,” because the lab’s interpretations “have made it extremely difficult for lawyers to challenge or question the results,” Law said.

“Experts have said hair strand tests to be used in court should be performed in a forensic lab while Motherisk is a clinical lab,” she said. “We need to make sure these tests are fully reliable going forward.”

The Court of Appeal tossed Broomfield’s cocaine-related convictions in October, after fresh expert evidence challenged the hair test results Motherisk presented in the case as “preliminary.”

Broomfield was found guilty in 2009 of giving her toddler a near-fatal dose of cocaine in 2005 after Motherisk director Gideon Koren said tests of the boy’s hair showed he had been regularly dosed with the drug for more than a year leading up to the overdose, which left him brain-damaged.

Sick Kids has refused to say how many other child welfare cases were influenced by the same type of analysis.

Broomfield, 31, served more than half of her seven-year prison sentence before she was released on bail last year, pending appeal, and lost custody of her son. She has abandoned her appeals of other child abuse convictions related to the boy. The court did not say in its decision how he got the cocaine.

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